How Determinate is the Original Understanding of Stare Decisis?

by Michael C. Dorf

My latest Verdict column discusses last week's oral argument in Gamble v. US. The case poses the question whether to abandon or at least to cut back on the "separate sovereigns" exception to Double Jeopardy. Under that exception, a prosecution in federal court does not preclude a subsequent prosecution in state court based on the same underlying conduct, nor vice-versa. The case is important in its own right but has garnered special attention because of its potential with respect to the Mueller investigation. Should Trump issue pardons to various of Mueller's targets, they could nonetheless face charges in state court (mostly in NY but potentially elsewhere in addition). However, if the separate sovereigns exception were abandoned or curtailed, that option could be off the table.

Or at least some observers have claimed. As I explain in the column, even abandonment of the separate sovereigns exception would leave Trump and his henchmen subject to state prosecution for crimes arising out of different conduct. Further, Gamble does not provide an opportunity to say anything about the interaction of the pardon power with Double Jeopardy. And there was not even a hint of a concern about the Mueller investigation expressed by any of the justices during the Gamble oral argument.

Accordingly, most of my column discusses the case's merits, albeit with a Trump-related twist at the end. Here I want to go into some greater depth on one point that was particularly interesting during the oral argument. The issue concerns what has become a leading justification for acceptance of stare decisis by self-styled originalists.

The core of the argument for abandoning the separate sovereigns exception--which has been part of Double Jeopardy jurisprudence at least since the mid-19th century--relies on original meaning. Gamble claims that old English cases treated a foreign prosecution as barring a subsequent English one. There was some pushback from various justices about whether the old English cases really established that principle, but let's set that aside. Louis Chaiten, Gamble's attorney, faced additional pushback on what to do with the historical materials even assuming they definitively showed that the original meaning of the Double Jeopardy Clause included an exception for separate sovereigns.

Part of that resistance might be deemed pragmatic or normative. Justice Kagan pointed out that if, on the basis of original meaning, the Court did away with the separate sovereigns exception as between US states and the federal government, it certainly would have to do away with the exception as between foreign sovereigns and US prosecutions. And she and other justices expressed extreme reluctance to give presumptive Double Jeopardy effect to foreign prosecutions. Justice Alito put the reluctance in the form of a hypothetical question:
let's say a group of American tourists are murdered by terrorists in a foreign country, and there is a prosecution in the foreign country for murder, the same offense in a court of competent jurisdiction there, and it's not a sham prosecution, but it's a fairly inept prosecution, lack of prosecutorial investigative resources in a poor country, and it results in an acquittal or a conviction with a very light sentence. And your position is that there could not be a prosecution here in the United States under the statute enacted by Congress to permit the prosecution of individuals who murder Americans abroad?
Chaiten tried to wiggle out of the question by first saying the Court didn't need to reach it in Gamble, which involved a US state. But when she originally posed it Justice Kagan pushed back, noting that if the core argument for abandoning separate sovereigns rests on its application in foreign-domestic cases, there isn't a good way to accept that argument for state-federal but not foreign-domestic cases.

That line of argument provides a sound reason for someone like Justice Kagan to reject Chaiten's position. He comes in with an argument based on original understanding; the argument, if accepted, would have harmful consequences; therefore, the argument is rejected. Justice Kagan does not purport to be an originalist. Like other nonoriginalist jurists and scholars, she considers the original understanding of any constitutional provision an important factor but merely one among many. It can be outweighed by other important factors, such as harmful consequences.

But what about justices who call themselves originalists? Justice Thomas is probably the most thoroughgoing originalist. Justice Scalia used to say that Justice Thomas does not even think that stare decisis provides a sufficient reason for adhering to nonoriginalist decisions. I'm not sure that's fully accurate, but it's certainly true that Justice Thomas gives substantially less weight to precedent than do most other jurists, including most other jurists who call themselves originalists.

By contrast, most jurists who call themselves originalists do accept stare decisis. Scalia argued that doing so did not undermine his general approach because, he said, every interpretive approach must make room for precedent as an add-on. For reasons I've explored elsewhere, I don't think that answer quite works, but in any event, many contemporary originalists provide a different justification for adhering to precedent. As Justice Kavanaugh put it during the Gamble argument, stare decisis was "part of the original understanding . . . rooted in Article III." Unpacking that a bit, he means that when Article III vests "the judicial power" in federal courts, it vests the traditional decision making tools, including the idea that judges should adhere to stare decisis. Kavanaugh said more or less that during his confirmation hearing as well.

As I understand the position of contemporary originalists who accept stare decisis, they accept stare decisis more or less in the same way as less thoroughgoingly originalists do: in deciding a case, if there's a valid precedent on point you follow it, absent special considerations. Kavanaugh said during Gamble that to overrule a precedent the Court must at least find that it is not just wrong but "grievously wrong, egregiously wrong." That strikes me as a more or less fair account of what the Court's cases have said about stare decisis (though perhaps not what the Court has uniformly done.) But there's a justificatory gap between accepting some version of stare decisis on originalists grounds and accepting the particulars of modern stare decisis doctrine. If the reason for accepting stare decisis in the first place is that it was part of the original understanding, that entails that an originalist jurist accepts the version of stare decisis that was accepted at the Founding, which might differ from the modern doctrine in various respects.

The most sophisticated version of the argument I've just laid out comes from Professors John McGinnis and Michael Rappaport, in advocating what they call "original methods originalism." To be sure, there are various other sorts of reasons why originalist jurists might accept stare decisis to one degree or another and in various circumstances. For an illuminating canvass of the relevant issues, I highly recommend Professor Lawrence Solum's recent essay in Constitutional Commentary reviewing Professor Randy Kozel's book Settled Versus Right: A Theory of Precedent. It's possible that various self-styled originalist judges might accept stare decisis for one or more of the reasons that Professor Solum discusses, but at least Justice Kavanaugh appears to accept it for McGinnis/Rappaport reasons: stare decisis is part of the judicial power of Article III.

But now we come to what strikes me as an important problem: The original understanding of stare decisis is under-determinative on many key questions. Here I'll pose a few of them:

(1) At the Founding, were judges expected to apply the same threshold for overruling to all precedents or could they give less (or even no) precedential weight to nonoriginalist decisions?

(2) At the Founding, what changes in surrounding doctrinal context would render a precedent ineffective? In Gamble, Mr. Chaiten argued that virtually none of the SCOTUS precedents applying the separate sovereigns exception should be given the weight of stare decisis, because they were decided before the Court ruled that the Fourteenth Amendment incorporated the Double Jeopardy Clause against the states. As I discuss in the Verdict column, Justice Kagan cast considerable doubt on this claim by pointing out that non-incorporation did not appear to play an important role in those precedents, but Chaiten's more general point is a fair one. The legal landscape changes. Does that undercut past precedents? What about other sorts of changes, such as technological, scientific, or moral changes? Do they? And most importantly, what did the doctrine of stare decisis have to say about those questions at the Founding?

(3) At the Founding, what was the scope of precedent? Did it apply only to the facts and narrow holding? To the so-called ratio decidendi? Where is the line between binding holding and non-binding dicta? Arthur Goodhart's 1930 Yale Law Journal article shows that not only did confusion about the scope of a holding exist in England and elsewhere at the time of the Founding but that strong disagreement persisted well into the 20th century. Goodhart concludes his article with 15 rules for determining the holding of a case, but in getting to them he contends with numerous conflicting views.

Although I am not an originalist, I do think original meaning is relevant to constitutional adjudication, and I also find historical studies enlightening for their own sake. I do not mean to pre-judge the question. Maybe Founding-Era documents provide determinate answers to the questions I've just posed. At the very least, I would suggest that they indicate an interesting research agenda for historically-minded scholars.

But if, as I suspect, the original understanding is indeterminate on many of these questions, then that suggests a very large role for pragmatic reasoning with respect to when and how to apply stare decisis. And because there are very few areas of constitutional law in which the Court writes on a blank slate, a theory of stare decisis is effectively most of a theory of interpretation. What I have shown, then, is that absent the discovery and elucidation of a largely determinate body of Founding-era law on stare decisis that speaks to the sorts of questions I enumerated above, originalist acceptance of stare decisis very substantially constrains the role of original meaning in determining outcomes, even accepting the originalists' own premises.